Heather D. Flowe, PhD
Interviewing survivors of rape: A new way forward (Part 2)
In my last blog, I spoke about the introduction of the Mendez Principles - the new international standard that encourages evidence-based approaches to questioning of interviewees.
These Principles are directed at policy makers and those who authorise procedures for interviewing in the criminal justice context, as well as those who carry out the interviews.
The pillars of the Principles include adherence to 1) rapport-based interviewing instead of inquisitional-style interviewing as a means of ensuring that interviewees can provide information about the investigation that is comprehensive, truthful, and relevant; 2) procedural safeguards, such as right to counsel and medical care; and 3) the highest standards of professionalism with regard to planning and evaluating interviews.
This guidance could not come at a better time.
It provides a more effective and fairer pathway for interviewing people in a number of contexts, primarily when people are suspects in a crime, but it can also guide new approaches for interviewing victims.
In my previous blog I asked what a version of the Mendez Principles might look like if introduced specifically for how we handle the testimony of survivors of sexual violence. This is because of the trends we see globally.
Take the UK for example, where I live and work.
Prosecution and conviction rates are at an all-time low in the UK. Many survivors report that they faced a hostile legal system. We clearly need to renew our efforts to improve the Criminal Justice System (CJS) response to victims, and this must include developing specific interview guidance for survivors, both in terms of taking initial accounts and for Achieving Best Evidence (ABE) interviews.
The current ABE guidance covers best practice guidance for initial accounts and video interviews with vulnerable, intimidated, and significant witnesses. Said guidance merges sexual violence victims, who are considered to be intimidated witnesses, together with vulnerable witnesses, a group that includes children under 18 years of age and any witness whose quality of evidence might be diminished because of a mental or physical disability.
Surely we are now at a point whereby our understanding of victims of sexual violence, the prevalence of such cases, and our apparent inability to prosecute perpetrators, necessitates specific guidance for interviews? Should we not adapt our guidance to be properly survivor-specific?
Expanding the Murad Code
One example of survivor-specific guidance is the Murad Code, first launched in June 2020. The Code is a voluntary global code of conduct for gathering and using information about systematic and conflict-related sexual violence. It has been developed to address problems that have arisen whilst interviewing survivors of sexual violence in conflict settings. It sets minimum standards for survivor-centred, safe, effective, and ethical gathering and use of victim or survivor information. The Code applies to people who document, investigate, report on, research, monitor, and otherwise collect and use such information.
Even though the current version emphasises the application of the principles to systematic and conflict-related violence, the principles are also relevant to interviews in a range of different contexts, including the UK. Indeed, developers of the Code are currently addressing its applicability to survivors of sexual and gender-based violence in special circumstances in the UK, such as in the Asylum cases.
But I believe it should be broadly adopted and applied to all survivors who report sexual offences to the police in the UK.
For example, some of the problems it addresses that seem most relevant to the UK include:
· The need for minimum core standards for interviews with survivors
Current Achieving Best Evidence (ABE) guidance, which sets out standards for police interviews, states the need for the police to ask victims to provide details, no matter how seemingly irrelevant; but at the same time, it stresses to victims to ensure that everything they report is accurate. Theoretically, based on what we know about the science of how people report their memories to the police, these two aims are in direct opposition to each other. Providing more information means reducing one’s reporting standards, which in turn reduces accuracy.
The ABE guidance also provides very little guidance on how to “challenge” survivors regarding potentially problematic areas of their account. This has the potential to result in credibility attacks that may harm interviewees and lead to their disengagement from the legal process, which I discuss in my previous blog here.
· The need for turning over interviews quickly has meant that the rights and interests of survivors regarding ethical, safe, and effective interviewing practices are overlooked
Questions have been raised about whether interviewers receive sufficient appropriate training, supervision, and feedback to ensure effective practice is followed. This is compounded by a reduced number of active police officers and legitimate concerns about the rape case ‘backlog’ that may well lead to police hurrying through interviews with a view to closure (often ‘no-casing’).
· A lack of coordination among multiple actors results in survivors being interviewed repeatedly, increasing the risk of re-traumatisation and inconsistencies of information acquired across interviews, which can harm the chance of securing a conviction
Depending on how a survivor first interacts with the police and justice system, they may find themselves subjected to interviews by call operators, first responders, the officer who takes an initial account, the Force Medical Examiner, the ABE interviewer, and others. Should the case progress to court, this pattern of repeated interviews may extend even further.
· The prioritisation of organisational goals over those of the survivor - including the survivor’s right to effective remedy and justice - undermines public trust in the system and can re-traumatise survivors
Victims in the UK, and elsewhere (e.g., U.S., Australia, New Zealand), frequently say the police who took their statements did not believe them and that going through the legal process was stressful, even traumatic (e.g., Campbell, 2006; Ullman & Townsend, 2007).
New Guidelines Needed
Clarity and consistency are needed to provide a more appropriate framework for how we capture testimony and support survivors.
The current unsafe and ineffective practices are undermining public faith in government institutions, law, and other support agencies. In the UK we are seeing this bear out in public outcry over years of government failure to treat sexual violence seriously. Thousands of survivors are outlining the frustrations they felt when interacting with investigators during interviews. Many others are expressing doubts about whether they would even report a case to the police, such is the lack of faith they have.
Surely the prevalence of sexual violence and rape demands immediate action. Central to this must be a new set of guidelines for interviews that support survivors, support justice, and support law enforcement in turning the tide.
Failure to do so risks worsening an already insidious problem that puts lives in danger every day.